National Green Tribunal
Anil Khyalia vs The Collector District Jaipur on 9 August, 2024
Item No. 02
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No.195/2024(CZ)
Anil Khyalia Applicant(s)
Vs
The Collector- Jaipur & Ors Respondent(s)
Date of Hearing: 09.08.2024
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. A SENTHIL VEL, EXPERT MEMBER
For Applicant(s): Mr. Vaibhav Pancholy, Adv.
For Respondent(s) :
ORDER
1. Aggrieved by the order dated 21.05.2024 passed by the Rajasthan State Pollution Control Board whereby and where under the application for the consent to operate under Section 21 (4) Air (Prevention and Control of Pollution) Act, 1981 was considered by the State Pollution Control Board and consent was granted with certain conditions, this application has been filed to quash and set aside the above order with further prayer that industrial activities should not the permitted to be operated in the residential colonies. The applicant has not quoted anything which is in violation of environmental laws. It is within the domain of Country and Town Planning Department and the State Policy to consider the matter and 1 Original Application No.195/2024(CZ) Anil Khyalia vs. The Collector- Jaipur & Ors decide as a matter of policy. The administrative decisions which has been taken by the State Government should not be interfered with unless and until it is proved by cogent evidence and report of any Expert Committee that there is any violation of law and/or damage to the environment and relied on following decision:
19. In 2011 (1) SCC 640 (Bajaj Hindustan limited vs Sir ShadiLal Enterprises Limited and another), the Hon'ble Apex Court has held as follows:
39. We should not be understood to have meant that the judiciary should never interfere with administrative decisions. However, such interference should be only within narrow limits e.g., when there is clear violation of the statute or a constitutional provision, or there is arbitrariness in the Wednesbury sense. It is the administrators and legislators who are entitled to frame politics and take such administrative decisions as they think necessary in the public interest. The Court should not ordinarily interfere with policy decisions, unless clearly illegal.
24. When there is no violation of the provisions of the statute or of a constitutional provision or in the absence of arbitrariness, the Court should not interfere with the administrative decisions. It is the administrators and 8 legislature, who are entitled to frame policy and entitled to take decisions as they think necessary in the public interest.
25. It is settled position that the Courts should not ordinarily interfere with the policy decisions unless they are clearly illegal or unconstitutional.
The Court can invalidate an executive policy only when it is clearly violative of some provisions of the statute or Constitution or is shockingly arbitrary but not otherwise."
2 Original Application No.195/2024(CZ) Anil Khyalia vs. The Collector- Jaipur & Ors
2. In the case of Km. Shrilekha Vidyarthi (supra) the Apex Court has held that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness it would be unconstitutional.
3. In the case of Ugar Sugar Works Ltd. v. Delhi Administrative and Ors. MANU/SC/0189/2001 : (2001) 3 SCC 635 the Apex Court has held as follows:
18. ...It is well settled that the Courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. However, if the policy cannot be faulted on any of these grounds, the mere fact that it would hurt business interests of a party, does not justify invalidating the policy.
26. In the aforesaid paragraph the Apex Court has further held that the Courts are not expected to express their opinion as to whether at a particular point of time or in a particular situation any such policy should have been adopted or not. It is best left to the discretion of the State.
4. In the case of Ms. Aruna Roy and Ors. v. Union of India and Ors. (2002) 7 SCC 368, the Apex Court has held as follows:
96. ...It is ultimately for Parliament to take a decision on the National Education Policy one way or the other. It is not the province of the Court to decide on the good or bad points of an education policy. The Court's limited jurisdiction to intervene in implementation of a policy is 3 Original Application No.195/2024(CZ) Anil Khyalia vs. The Collector- Jaipur & Ors only if it is found to be against any statute or the Constitution.
It has further held in paragraph 97 of said Report as follows:
It cannot, however, compel that a particular practice or tradition followed in framing and implementing the policy, must be adhered to. The Court has to keep in mind the above limitations on its jurisdiction and power. It is true that if a policy framed in the field of education or other fields runs counter to the constitutional provisions or the philosophy behind those provisions, this Court must, as part of its constitution duty, interdict such policy.
28. In the case of Union of India and Anr. v. International Trading Co. and Anr. MANU/SC/0392/2003 : (2003) 5 SCC 437 the Apex Court has held as follows:
15. While the discretion to change the policy in exercise of the executive power, when not trammeled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give impression that it was so done arbitrarily on by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the state, and non-arbitrariness in essence and substance is the heart beat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case.
A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness.
5. In the case of Delhi Development Authority and Anr. v. Joint Action Committee, Allottee of SFS Flats and Ors. 4 Original Application No.195/2024(CZ) Anil Khyalia vs. The Collector- Jaipur & Ors MANU/SC/0202/2008 : (2008) 2 SCC 672, the Apex Court has held as follows:
64. An executive order termed as a policy decision is not beyond the pale of judicial review. Whereas the superior courts may not interfere with the nittygritties of the policy, or substitute one by the other but it will not be correct to contend that the court shall like its judicial hands off, when a plea is raised that the impugned decision is a policy decision. Interference therewith on the part of the superior court would not be without jurisdiction as it is subject to judicial review.
65. Broadly, a policy decision is subject to judicial review on the following grounds:
(a) if it is unconstitutional;
(b) if it is dehors the provisions of the Act and the Regulations;
(c) if the delegate has acted beyond its power of delegation;
(d) if the executive policy is contrary to the statutory or a larger policy.
6. In the case of Villianur Iyarkkai Padukappu Maiyam v. Union of India and Ors. MANU/SC/0811/2009 : (2009) 7 SCC 561, the Apex Court has held as follows:
168. In a democracy, it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or malafide, a decision bringing about change cannot per se be interfered with by the court.5
Original Application No.195/2024(CZ) Anil Khyalia vs. The Collector- Jaipur & Ors
169. It is neither within the domain of the courts nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a Petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. Wisdom and advisability of economic policy are ordinarily not amenable to judicial review. In matters relating to economic issues the Government has, while taking a decision, right to "trial and error" as long as both trial and error are bona fide and within the limits of the authority. For testing the correctness of a policy, the appropriate forum is Parliament and not the courts.From the aforesaid decisions of the Apex Court, it is clear that a Court can interfere in a policy decision of the Parliament/State Legislatures/Governments if any of the following conditions exist:(I) If the policy fails to satisfy the test of reasonableness, it would be unconstitutional.(II) The change in policy must be made fairly and should not give impression that it was so done arbitrarily on any ulterior intention.(III) The policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc.(IV) If the policy is found to be against any statute or the Constitution or runs counter to the philosophy behind these provisions.(V) It is dehors the provisions of the Act or Legislations.(VI) If the delegatee has acted beyond its power of delegation."
7. The rule can also be challenged if it is beyond its limits permissible under the principal Act and it must be in good faith and in the public interest. In the case of State of U.P. and 6 Original Application No.195/2024(CZ) Anil Khyalia vs. The Collector- Jaipur & Ors others v. Renusagar Power Co. and others, MANU/SC/0505/1988 : (1988) 4 SCC 59, the Supreme Court has observed as under:
"79. If the exercise of power is in the nature of subordinate legislation the exercise must conform to the provisions of the statute. All the conditions of the statute must be fulfilled...."
48. A subordinate legislation can be declared ultra vires if it is found that the rule challenged is not within the scope of authority conferred on the rule maker by the parent Act. The Court cannot examine the wisdom or officiousness of the rules. It cannot consider the merit or demerit of a policy of the State. It is well-settled law that delegatee cannot frame a rule which is not authorized by the parent statute. If the rule has not been framed within the powers delegated by the parent Act and if it is beyond the said power, only in those cases the Court can declare it ultra vires.
49. De. Smith in his book in 'Principles of Judicial Review', 1999 Edition, at page 95 has observed as under:
"In essence, the doctrine of ultra vires permits the Courts to strike down decisions made by bodies exercising public functions which they have no power to make. Acting ultra vires and acting without jurisdiction have essentially the same meaning, although in general the term "vires" has been employed when considering administrative decisions and subordinate legislative orders, and "jurisdiction" when considering judicial decisions, or those having a judicial flavour."
Sir William Wade and Christopher Forsyth in their book on 'Administrative Law', Eighth Edition, at page 35, has defined the ultra vires in the following terms: 7
Original Application No.195/2024(CZ) Anil Khyalia vs. The Collector- Jaipur & Ors "The simple proposition that a public authority may not act outside its powers (ultra vires) might fitly be called the central principle of administrative law. The juristic basis of judicial review is the doctrine of ultra vires. To a large extent the Courts have developed the subject by extending the refining this principle, which has many ramifications and which in some of its aspects attains a high degree of artificiality."
In the case of P. Krishnamurthy (supra) the Supreme Court has culled out the following principles:
"15. There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognized that a subordinate legislation can be challenged under any of the following grounds:
(a) Lack of legislative competence to make the subordinate legislation.
(b) Violation of fundamental rights guaranteed under the Constitution of India.
(c) Violation of any provision of the Constitution of India.
(d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act.
(e) Repugnancy to the laws of the land, that is, any enactment.
(f) Manifest arbitrariness/unreasonableness (to an extent where Court might well say that the legislature never intended to give authority to make such Rules)."
8. In exercise of power of judicial review, the Courts do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on the ground of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed arbitrariness, irrationality, perversity and mala fide, render the 8 Original Application No.195/2024(CZ) Anil Khyalia vs. The Collector- Jaipur & Ors policy unconstitutional. Unless a policy decision is demonstrably capricious or arbitrary and not informed by any reason or discriminatory or infringing any Statute or the Constitution, it cannot be a subject of judicial interference. However, if the policy cannot be touched on any of these grounds, the mere fact that it may affect business interests of a party does not justify invalidating the policy. (Vide M/s. Ugar Sugar Works Ltd. Vs. Delhi Administration & Ors., AIR 2001 SC 1447; State of Himachal Pradesh & Anr. Vs. Padam Dev & Ors., (2002) 4 SCC 510; Balco Employees' Union (Regd) Vs. Union of India & Ors., AIR 2002 SC 350; State of Rajasthan & Ors. Vs. Lata Arun AIR 2002 SC 2642; and Federation of Railway Officers Association Vs. Union of India, (2003) 4 SCC
289).
9. In Union of India & Anr. Vs. International Trading Company & Anr. (2003) 5 SCC 437, the Supreme Court pointed out that the Policy of the Government, even in contractual matters, must satisfy the test of reasonableness and every State action must be informed by reason. Article 14 of the Constitution applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. The Court further held as under:
"15. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so 9 Original Application No.195/2024(CZ) Anil Khyalia vs. The Collector- Jaipur & Ors done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness.
16. Where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in a different manner which does not disclose any discernible principle which is reasonable itself shall be labeled as arbitrary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary." (Emphasis added).
10. In Union of India Vs. Dinesh Engineering Corpn. & Anr. (2001) 8 SCC 491 the Supreme Court observed as follows:-
".........Where the decision of the authority is in regard to a policy matter, this Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question the correctness of a policy decision. But then this does not mean that the courts have to abdicate their right to scrutinise whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record.......... . Any decision, be it a simple administrative decision or a policy decision, if 10 Original Application No.195/2024(CZ) Anil Khyalia vs. The Collector- Jaipur & Ors taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so, then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution."
11. In Krishnan Kakkanth Vs. Govt. of Kerala, AIR 1997 SC 128;
the Hon'ble Apex Court held that the judicial review of policy decision is permissible in exceptional circumstances only when the Court is of the view that the order suffers from arbitrariness and unreasonableness. The Court observed as under:-
" To ascertain unreasonableness and arbitrariness in the context of Article 14 of the Constitution, it is not necessary to enter upon any exercise for finding out the wisdom in the policy decision of the State Government. It is immaterial if a better or more comprehensive policy decision could have been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for which such decision has been taken. Unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, the policy decision cannot be struck down. It should be borne in mind that except for the limited purpose of testing a public policy in the context of illegality and unconstitutionality, Court should avoid embarking on uncharted ocean of public policy."
12. The Supreme Court in Kailash Chandra Sharma Vs. State of Rajasthan & Ors., AIR 2002 SC 2877 upheld the Full Bench judgment of the Rajasthan High Court in Deepak Kumar Suthar Vs. State & Ors., 2000 Lab IC 1 wherein the Court had struck down the policy decision of the Government granting bonus marks on the ground of residence in public employment 11 Original Application No.195/2024(CZ) Anil Khyalia vs. The Collector- Jaipur & Ors being ultra vires the provisions of Article 14 and 16 of the Constitution. The Supreme Court held that policy decision giving weightage to the candidates in public employment on the ground of 16 residence was impermissible in view of the Constitutional provisions. The policy decision was, therefore, bad and in such a case judicial review was found to be warranted.
13. The Supreme Court in Cholan Roadways Ltd. Vs. G. Thirugnanasambandam, AIR 2005 SC 570, has gone a step further by bringing "errors of facts" within the scope of judicial review. While deciding the said case, reliance was placed upon the judgment in E. Vs. Secretary of State for the Home Department, (2004) 2 Weekly Law Report, 1351, wherein it has been held that a review of the merits of the decision making process is fundamental to the Court's jurisdiction. The power of review may even extend to a decision on a question of fact. The error sought to be corrected must be undeniably a significant factor in the decision making process.
14. In R.K. Garg Vs. Union of India & Ors., AIR 1981 SC 2138, the Supreme Court considered the validity of the provisions of the Special Bearer Bonds (Immunities and Exemptions) Ordinance, 1981 and Special Bearer Bonds (Immunities and Exemptions) Act, 1981, which was provided for exemption and immunity from criminal liability of the persons who invest money in purchasing the Special Bearer Bonds from the 12 Original Application No.195/2024(CZ) Anil Khyalia vs. The Collector- Jaipur & Ors income never disclosed earlier. The Court made the following observations:-
"It is clear that Article 14 does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of attaining specific ends. What is necessary in order to pass the test of permissible classification under Article 14 is that the classification must not be "arbitrary, artificial or evasive" but must be based on some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislature...........Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by no less a person than Holmes, J., that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or straight jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with greater play in the joints has to be allowed to the legislature. The Court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved. ........The Court must always remember that "legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry"
that exact wisdom and nice adaption of remedy are not always possible and that "judgment is largely a prophecy based on meagre and uninterpreted experience". Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuse. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid.............There may even be possibilities of abuse, 13 Original Application No.195/2024(CZ) Anil Khyalia vs. The Collector- Jaipur & Ors but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses. Indeed, howsoever great may be the care bestowed on its framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity. The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provisions. If any crudities, inequities or possibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues. (Emphasis added).
15. In State of M.P. & Ors. Vs. Nandlal Jaiswal & Ors., (1986) 4 SCC 566, the Hon'ble Supreme Court re-examined the scope of Article 14 of the Constitution while having a judicial review of the executive order of the State relating to trade and business and held as under:-
" But, while considering the applicability of Article 14 in such a case, we must bear in mind that, having regard to the nature of the trade or business, the Court would be slow to interfere with the policy laid down by the State Government for grant of licences for manufacture and sale of liquor. The Court would, in view of the inherently pernicious nature of the commodity allow a large measure of latitude to the State Government in determining its policy of regulating, manufacture and trade in liquor. Moreover, the grant of licences for manufacture and sale of liquor would essentially be a matter of economic policy where the court would hesitate to intervene and strike down what the State Government had done, unless it appears to be plainly arbitrary, irrational or mala fide..........in regard to legislation relating to economic matters must apply equally in regard to executive action in the field of economic activities, though the executive 14 Original Application No.195/2024(CZ) Anil Khyalia vs. The Collector- Jaipur & Ors decision may not be placed on as high a pedestal as legislative judgment in so far as judicial deference is concerned. We must not forget that in complex economic matters every decision is necessarily empiric and it is based on experimentation or what one may call 'trial and error method' and, therefore, its validity cannot be tested on any rigid 'a priori' considerations or on the application of any strait jacket formula. The court must while adjudging the constitutional validity of an executive decision relating to economic matters grant a certain measure of freedom or 'play' in the "joints" to the executive.........The Court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The Court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide."
16. While deciding the said case, the Apex Court relied upon the admonition given by the Frankfurter, J. in Morey v. Doud, (1957) 354 US 457:-
"In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference, to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events - self limitation can be seen to be the path to judicial wisdom and institutional prestige and stability."15
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17. A similar view has been reiterated in M. P. Oil Extraction & Anr. Vs. State of M.P. & Ors., (1997) 7 SCC 592.
18. In Sterling Computers Ltd. Vs. M/s. M & N Publications Ltd., AIR 1996 SC 51, the Hon'ble Supreme Court held as under:-
" It is not possible for Courts to question and adjudicate every decision taken by an authority, because many of the Government Undertakings which in due course have acquired the monopolist position in matters of sale and purchase of products and with so many ventures in hand, they can come out with a plea that it is not always possible to act like a quasijudicial authority while awarding contracts. Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bona fide manner although not strictly following the norms laid down by the Courts, such decisions are upheld on the principle laid down by Justice Holmes, that Courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of play in the joints to the executive........ On the basis of those judgments it cannot be urged that this Court has left to the option of the authorities concerned whether to invite tenders or not according to their own discretion and to award contracts ignoring the procedures which are basic in nature, taking into account factors which are not only irrelevant but detrimental to the public interest."
19. It is to be noted that the right of the people to live in healthy environment with minimum disturbance of ecological balance and without avoidable hazard to them and to their cattle, homes and agriculture land and undue affectation of air, water and environment. It is for the Government of the nation and not for the Court to decide whether the deposits should be 16 Original Application No.195/2024(CZ) Anil Khyalia vs. The Collector- Jaipur & Ors exploited at the cost of ecology and environmental consideration or the industrial requirement should be otherwise satisfied. It may be perhaps possible to exercise greater control and vigil over the operation and strike a balance between preservation and utilization, that would indeed be a matter for an Expert Body to examine and on the basis of appropriate advice, Government should take a policy decision and formally implement the same and for the purpose it is for the Expert Committee to examine.
20. The Hon'ble Apex Court in case of N.D. Jayal & Anr. Vs. Union of India & Ors. reported in (2004) 9 SCC 362 dealing with the matter of Tehri Dam observed as follows:
"22. Before adverting to other issues, certain aspects pertaining to the preservation of ecology and development have to be noticed. In Vellore Citizens Welfare Forum v. Union of India, and in M C Mehta v. Union of India, it was observed that the balance between environmental protection and developmental activities could only be maintained by strictly following the principle of' sustainable development.' This is a development strategy that caters the needs of the present without negotiating the ability of upcoming generations to satisfy their needs. The strict observance of sustainable development will put us on a path that ensures development while protecting the environment, a path that works for all peoples and for all generations. It is a guarantee to the present and a bequeath to the future. All environmental related developmental activities should benefit more people while maintaining the environmental balance. This could be ensured only by the strict adherence of sustainable development without which life of coming generations will be in jeopardy.
23. In a catena of cases we have reiterated that right to clean environment is a guaranteed fundamental right. May be in different context, the right to development is also declared as a component of Article 21 in cases like Samata 17 Original Application No.195/2024(CZ) Anil Khyalia vs. The Collector- Jaipur & Ors v. State of Andhra Pradesh and in Madhu Kishore v. State of Bihar.
24. The right to development cannot be treated as a mere right to economic betterment or cannot be limited to as a misnomer to simple construction activities. The right to development encompasses much more than economic well being, and includes within its definition the guarantee of fundamental human rights. The 'development' is not related only to the growth of GNP. In the classic work - 'Development As Freedom' the Nobel prize winner Amartya Sen pointed out that the issue of development cannot be separated from the conceptual framework of human right'. This idea is also part of the UN Declaration on the Right to Development. The right to development includes the whole spectrum of civil, cultural, economic, political and social process, for the improvement of peoples' well being and realization of their full potential. It is an integral part of human right. Of course, construction of a dam or a mega project is definitely an attempt to achieve the goal of wholesome development. Such works could very well be treated as integral component for development.
25. Therefore, the adherence of sustainable development principle is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. Right to environment is a fundamental right. On the other hand right to development is also one. Here the right to 'sustainable development' cannot be singled out. Therefore, the concept of 'sustainable development' is to be treated an integral part of 'life' under Article 21. The weighty concepts like intergenerational equity State of Himachal Pradesh v. Ganesh Wood Products, public trust doctrine M C Mehta v. Kamal Nath, and precautionary principle (Vellore Citizens), which we declared as inseparable ingredients of our environmental jurisprudence, could only be nurtured by ensuring sustainable development.
26. To ensure sustainable development is one of the goals of Environmental Protection Act, 1986 (for short 'the Act') and this is quiet necessary to guarantee 'right to life' under Article 21. If the Act is not armed with the powers to ensure sustainable development, it will become a barren shell. In other words, sustainable development is one of the means to achieve the object and purpose of the Act as 18 Original Application No.195/2024(CZ) Anil Khyalia vs. The Collector- Jaipur & Ors well as the protection of 'life' under Article 21. Acknowledgment of this principle will breath new life into our environmental jurisprudence and constitutional resolve. Sustainable development could be achieved only by strict compliance of the directions under the Act. The object and purpose of the Act - "to provide for the protection and improvement of environment" could only be achieved by ensuring the strict compliance of its directions. The concerned authorities by exercising its powers under the Act will have to ensure the acquiescence of sustainable development. Therefore, the directions or conditions put forward by the Act need to be strictly complied with. Thus the power under the Act cannot be treated as a power simpliciter, but it is a power coupled with duty. It is the duty of the State to make sure the fulfillment of conditions or direction under the Act.
Without strict compliance, right to environment under Article 21 could not be guaranteed and the purpose of the Act will also be defeated. The commitment to the conditions thereof is an obligation both under Article 21 and under the Act. The conditions glued to the environmental clearance for the Tehri Dam Project given by the Ministry of Environment vide its Order dated July 19, 1990 has to be viewed from this perspective."
21. It is held in N. D. Jayal Vs. Union of India, Tehri Dam case reported in (2004) 9 SCC 418:
"137. When natural resources are exploited in a big way for big projects by State with all sincerity and good intentions for general common benefit, social conflicts arise as a natural adverse consequence. Generally the conflicts arise between marginal farmers, peasants and other landless persons who survive on natural resources and those who are better off, rich or affluent and who desire to undertake agriculture and industry. When river projects for dams are undertaken to generate electricity and improve irrigation facilities, conflicts arise between people living up-stream who have to necessarily lose their source of living and habitat and those living downstream who need water and electricity for their homes, industries and agricultural fields. When such social conflicts between different social groups i.e. up-stream population and 19 Original Application No.195/2024(CZ) Anil Khyalia vs. The Collector- Jaipur & Ors down-stream population, between rural population and urban population, between poor surviving on natural resources and others needing natural resources for further development arise what should be the duty and priorities of the State and its authorities who have undertaken the projects? When such social conflicts arise between poor and more needy on one side and rich or affluent or less needy on the other, prior attention has to be paid to the former group which is both financially and politically weak. Such less advantaged group is expected to be given prior attention by Welfare State like ours which is committed and obliged by the Constitution, particularly by its provisions contained in the Preamble, Fundamental rights, Fundamental duties and Directive Principles, to take care of such deprived sections of people who are likely to lose their home and source of livelihood."
22. In light of the above facts, it is left to the local authorities, State Administration to take a policy decision. The applicant is at liberty to move an application before the State Administration/District Administration to decide as a matter of policy and State Administration may take a suitable decision as a policy decision. Since the matter as raised is not within the domain of this Tribunal and if the applicant is aggrieved by the order passed by the State Pollution Control Board, appropriate remedy is to file the appeal. The application as filed is not maintainable and thus dismissed.
Sheo Kumar Singh, JM Dr. A Senthil Vel, EM 9th August, 2024 OA No. 195/2024(CZ) K 20 Original Application No.195/2024(CZ) Anil Khyalia vs. The Collector- Jaipur & Ors